Mar. 9, 2011

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A public fund to defend the state against lawsuits over abortion laws has about $14,500 in it, far less than what lawmakers think would be needed if the state would be challenged.

The fund has become an issue as the Legislature debated a bill that would increase the waiting period for an abortion, and opponents questioned whether South Dakota could afford to pay for a legal challenge.

The bill's sponsor, Sen. Roger Hunt, R-Brandon, said during debate Feb. 28 that more than $3 million was contributed to the fund.

"So, the scare tactic that this is going to be an expensive evolution, I do not feel has any merit whatsoever," he said.

But Wednesday, Hunt clarified that he meant more than $3 million of private money was given to pay for the defense of a 2005 lawsuit and didn't go through the fund. Instead, it went directly to the private lawyers, he was told.

The Life Protection Fund was created in 2006 to allow donations for lawsuits filed against the state because of abortion law. Donor names are public, and the fund has not been tapped.

"If someone is going to contribute $500,000, they don't necessarily want it going through state government," Hunt said.

His bill would force a woman visiting a clinic to wait 72 hours, up from the current 24-hour rule, and then proceed with an abortion only after consulting a pregnancy help center.

Governor weighing merits

The approved bill was delivered to Gov. Dennis Daugaard on Tuesday, and he has until March 24 to sign it. He probably will not decide this week, said his policy and communications director, Tony Venhuizen.

Last week, Daugaard said that he was pro-life and "inclined to sign it."

Daugaard also added that he wasn't overly concerned about the litigation expense and has been assured that private money is available.

In making his decision, Daugaard is looking into the costs of litigation.

"He is certainly interested in that aspect," Venhuizen said Wednesday.

If opponents sued, legislators listed a variety of prices to defend the state, ranging from $50,000 to $1 million.

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Divided on cost's importance

Lawmakers also were divided on whether the cost of potential lawsuits bothered them.

For some legislators, the price for litigation was not an issue, said Senate Majority Leader Russell Olson, R-Wentworth.

"Cost would be secondary when it comes to protecting the life of an unborn child," he said.

In casting his no vote, Rep. Tom Jones, D-Viborg, said the cost of litigation, which he estimates to be up to $1 million, was a factor but not a big one.

"The state will probably have to pick up the tab," he said.

Rep. Manny Steele, R-Sioux Falls, a co-sponsor of the bill, said those who voted against it used "wild, out-of-proportioned figures." He said he estimates it will cost more like $50,000 to $100,000.

Historically, when the Legislature debates litigation costs, "the guesstimates on what it will actually cost are overestimated," said Rep. R. Shawn Tornow, R-Sioux Falls.

Elaine Roberts, co-chairwoman of the South Dakota Campaign for Healthy Families, which led the opposition to an abortion ban on the 2008 ballot, said it wasn't clear to lawmakers how much private money is available.

"The bill was on a fast track, and I think that folks weren't necessarily listening or thinking about those things," she said.

In 2005, the Legislature passed the informed-consent bill that forces a provider to tell a woman that abortion ends a human life, that she has a constitutional right to have a relationship to that life and that abortion could raise the risk of suicide. Planned Parenthood sued, and the fight continues in court.

Donors will 'step up to the plate,' Hunt says

Hunt said he didn't know how much money was in the Life Protection Fund now. But he said preventing coercion of a pregnant woman is an important enough issue to donors.

"I think we will find people to step up to the plate," he said.

South Dakota Right to Life sent out an e-mail about the Life Protection Fund to its members, said education coordinator Valerie Johnson.

"We just wanted to make sure they know that it's there if that's something they want to give to," she said.

Alpha Center, a Sioux Falls agency that counsels women against abortion, also has spread the word about the fund.

"Until we know if there is going to be a lawsuit or not, people are holding off, but I know they are asking about it," the Alpha Center's Leslee Unruh said.

Opponents, who say the legislation has constitutional issues, aren't saying whether they plan to sue yet and are waiting on the governor.

"We are not making any statements about litigation at this point in time," said American Civil Liberties Union of South Dakota spokeswoman Sam Ellingson.

"Right now, nothing is off the table."

"I think we are still looking at all options," added Kathi Di Nicola, media relations director for Planned Parenthood of Minnesota, North Dakota and South Dakota.